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Australian Human Rights Commission

Submission to the UN Committee On The Elimination Of Racial Discrimination, 30 October 2017

Information concerning Australia’s compliance with the International Convention on the Elimination of All Forms of Racial Discrimination

Australian Human Rights Commission Submission to the UN Committee on the Elimination of Racial Discrimination

30 October 2017

Australian Human Rights Commission

Short document title, Short description – Date

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Table of Contents

Australian Human Rights Commission Submission to the UN Committee on the Elimination of Racial Discrimination1

1Introduction4

2Priority areas5

3Human rights framework6

3.1Scrutiny of human rights and the Parliamentary Joint Committee on Human Rights (CERD article 2; CO 9 & 10)6

3.2Domestic incorporation (CERD article 2; CO 9, 10 & 17)7

(a)Incorporation of CERD7

(b)Implementation of Committee’s Concluding Observations9

(c)Ratification of OPCAT9

(d)Other relevant instruments9

3.3Education (CERD article 7; CO 11, 21 & 27)10

(a)Human rights education in the national curriculum10

(b)Multiculturalism education in the national curriculum10

(c)Human rights education in the public service11

(d)National Anti-Racism Strategy11

4Racial discrimination in Australia12

4.1Multicultural Australia12

4.2Racial discrimination generally12

4.3Strengthening multiculturalism13

(a)Multiculturalism policy (CERD article 2; CO 14)13

(b)Multiculturalism legislation (CERD article 2; CO 14)13

(c)Policy machinery (CERD article 2; CO 14)14

(d)Citizenship requirements (CERD article 2; CO 14)14

4.4Cultural diversity in Australian organisations and institutions (CERD article 5; CO 14)15

(a)Leadership15

(b)Media16

(c)Law enforcement16

4.5Data collection (CERD article 2; CO 23)16

5Aboriginal and Torres Strait Islander peoples17

5.1Experiences of racial discrimination17

5.2UN Declaration on Indigenous Peoples (CERD article 2; CO 15)17

5.3Constitutional recognition (CERD article 1, 2, 5, 6; CO 15)18

5.4Incarceration of Aboriginal and Torres Strait Islander people (CERD article 5; Declaration articles 7 & 22; CO 19 & 20)19

(a)Disproportionate rates of incarceration19

(b)Northern Territory Royal Commission20

(c)Deaths in police custody21

5.5Family/domestic violence (CERD article 5 & Declaration article 22)21

5.6Support to human rights defenders and related bodies (CERD article 2; CO 15 & 19)22

5.7Cultural rights (native title) (CERD articles 2, 5; Declaration articles 3, 10, 11, 20, 25, 26, 27, 28, 29, 32; CO 16 & 18)23

5.8Closing the Gap Strategy (CERD article 5; Declaration articles 3, 4, 13, 14, 19, 21, 23 & 24; CO 21 & 22)23

5.9Compulsory income management schemes (CERD article 5; Declaration article 8; CO 16)24

6Migrants, ethnic minorities and culturally and linguistically diverse (CALD) peoples25

6.1General25

6.2Muslim Australians (CERD article 2; CO 23)25

6.3African communities in Australia (CERD article 2; CO 23)26

6.4International students (CERD article 2; CO 23)26

6.5Religious discrimination or vilification (CERD articles 4 & 5)27

6.6Migrant settlement outcomes (CERD article 5; CO 24)28

6.7Refugees and asylum seekers28

6.8Visa refusals and cancellations on character grounds29

7Police practices (CERD article 5)29

7.1Palm Island30

7.2Kalgoorlie31

8Counterterrorism (CERD article 5; CO 12)32

9Cyber-racism (CERD article 2)33

10Freedom of expression34

10.1Racial vilification and discrimination in public discourse (CERD article 2, 4 & 7)34

10.2Inquiries into freedom of expression (CERD article 2 & 7)35

11Immigration detention (CO 24)35

11.1Detainee numbers, nationalities and length of detention35

11.2Legislative framework36

12Business and human rights (CO 13)37

12.1National Action Plan37

12.2Modern slavery37

12.3Procurement38

Attachment 1: Compilation of Recommendations39

Endnotes45

Introduction

This submission is made by the Australian Human Rights Commission. The Commission is an ‘A status’ national human rights institution established and operating in full compliance with the Paris Principles.

The Commission has a statutory power to promote and protect human rights under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). The AHRC Act defines human rights as the international instruments scheduled to or declared under the AHRC Act, which includes the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). The Commission’s work relating in this area is led by Dr Tim Soutphommasane, Australia’s Race Discrimination Commissioner.

The Racial Discrimination Act 1975 (Cth) (RDA) gives effect to Australia’s international human rights commitments, including CERD, and promotes equality between people of different backgrounds. The RDA protects people across Australia from unfair treatment on the basis of their race, colour, descent, or national or ethnic origin in different areas of public life. It also makes racial vilification unlawful.

The Commission has the power under the AHRC Act to investigate and conciliate complaints made under the RDA by people who experience direct or indirect discrimination. Further information about the Commission can be found at www.humanrights.gov.au.

The Commission thanks the United Nations Committee on the Elimination of Racial Discrimination (the Committee) for the opportunity to provide a written contribution prior to its consideration of Australia’s 18th to 20th periodic report under CERD. The Commission looks forward to further engaging with the Committee.

The Commission recognises the steps taken by the Australian Government to improve Australia’s human rights situation following the Committee’s concluding observations in respect of Australia’s 15th to 17th periodic report. The primary purpose of this submission is to identify issues of concern to assist the Committee with its assessment of Australia’s 18th to 20th periodic report at the Committee’s 94th session in Geneva.

This submission provides information concerning racial discrimination experienced by key population groups in Australia and other thematic issues relating to racial discrimination. In relation to each section, the Commission has, where appropriate, referred to the relevant articles of CERD engaged and the relevant paragraph of the Committee’s concluding observations of 13 September 2010 on Australia’s 15th to 17th periodic report.

This submission is based on work that has been undertaken by the Commission in accordance with its mandate and functions, or otherwise on publicly available information. The Commission has brought the issues raised in this submission to the attention of the Australian Government.

The Commission’s proposed recommendations are contained in the body of this submission and also compiled in Attachment 1.

Priority areas

The Commission considers all of the information and recommendations provided in this submission to be of importance to Australia’s compliance with CERD. However, the Commission wishes to draw the Committee’s attention to three areas of particular importance:

· The collection of comprehensive data in relation to racial discrimination, cultural diversity, racially motivated crimes and multiculturalism generally, as discussed in section 4.5.

· Consideration and implementation of relevant recommendations, once released, of the Royal Commission into the Protection and Detention of Children in the Northern Territory, as discussed in section 5.4(b).

· Training of police in cultural competency and anti-racism; compliance of police practices with international human rights law (including those rights enshrined in CERD and given expression in the Racial Discrimination Act 1975 (Cth)); and the response of the Queensland Government to Wotton v State of Queensland (No 5) [2016] FCA 1457, as discussed in section 7.

The Commission recommends that the Committee request an update from the Australian Government on progress in relation to the following priority areas in 12 months time under article 9(1) of CERD and rule 65 of the Rules of procedure:

i. The collection of comprehensive data in relation to racial discrimination, cultural diversity, racially motivated crimes and multiculturalism generally (see Recommendation 18).

ii. Consideration and implementation of relevant recommendations, once released, of the Northern Territory Royal Commission into Children in Detention (see Recommendation 22).

iii. Training of police in cultural competency and anti-racism; compliance of police practices with international human rights law (including those rights enshrined in CERD and given expression in the Racial Discrimination Act 1975 (Cth)); and the response of the Queensland Government to Wotton v State of Queensland (No 5) [2016] FCA 1457 (see Recommendation 37).[endnoteRef:2] [2: United Nations Committee on the Elimination of Racial Discrimination, Rules of procedure of the Committee on the Elimination of Racial Discrimination, UN Doc CERD/C/35/Rev.3 (11 January 2012). At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD%2fC%2f35%2fRev.3&Lang=en (viewed 11 October 2017); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969), art 9(1).]

Human rights framework Scrutiny of human rights and the Parliamentary Joint Committee on Human Rights (CERD article 2; CO 9 & 10)

The Commission commends the Australian Government for establishing the Parliamentary Joint Committee on Human Rights (PJCHR) in 2011.

The PJCHR analyses bills and legislative instruments introduced into the federal Parliament for compliance with human rights. Since August 2012, the PJCHR has produced over 65 reports to Parliament assessing over 960 bills.[endnoteRef:3] [3: Since the beginning of 2016, the Parliamentary Joint Committee on Human Rights has reviewed over 74 other legislative instruments. Parliamentary Joint Committee on Human Rights, Index of Bills and Legislative Instruments. At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Index_of_bills_and_instruments (viewed 11 September 2017). ]

The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) requires each bill, regulation and ordinance introduced into Parliament to be accompanied by a statement of compatibility with human rights, defined as the seven core international human rights instruments to which Australia is a party.[endnoteRef:4] [4: Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), ss 8, 9. At https://www.legislation.gov.au/Details/C2011A00186 (viewed 11 September 2017). ]

The Commission is concerned that the PJCHR’s views and concerns do not always appear to be given consideration during the legislative process. It is also concerned that it is possible for a bill to pass into law prior to the PJCHR releasing its conclusions in relation to the human rights compliance of the bill.[endnoteRef:5] [5: George Williams and Daniel Reynolds, ‘The Operation and Impact of Australia’s Parliamentary Scrutiny Regime for Human Rights’ (2015) 41(2) Monash University Law Review 469, 477, 506–7. At http://www.austlii.edu.au/au/journals/MonashULawRw/2015/17.html (viewed 11 September 2017).]

The Commission is concerned that there is variable quality in the drafting of statements of compatibility within and across Government departments. [endnoteRef:6] Some statements of compatibility devote cursory attention to assessing a draft law’s identified impingement on human rights and some simply assert (without due explanation) that a draft law is compatible with human rights even where an impingement on rights has been acknowledged.[endnoteRef:7] [6: George Williams and Daniel Reynolds, ‘The Operation and Impact of Australia’s Parliamentary Scrutiny Regime for Human Rights’ (2015) 41(2) Monash University Law Review 469, 474–5. At http://www.austlii.edu.au/au/journals/MonashULawRw/2015/17.html (viewed 11 September 2017).] [7: Shawn Rajanayagam, ‘Does Parliament Do Enough? Evaluating Statements of Compatibility under the Human Rights (Parliamentary Scrutiny) Act’ (2015) 38(3) University of New South Wales Law Journal 1046, 1069–1070. At http://www.austlii.edu.au/cgi-bin/download.cgi/cgi-bin/download.cgi/download/au/journals/UNSWLJ/2015/37.pdf (viewed 11 September 2017).]

The Commission notes that some other parliamentary committees also scrutinise legislation and consider compliance with human rights.[endnoteRef:8] [8: Parliamentary scrutiny processes include the Senate Standing Committee on Regulations and Ordinances, Senate Standing Committee for the Scrutiny of Bills, Parliamentary Joint Committee on Human Rights, Senate Standing Committee on Legal and Constitutional Affairs, Parliamentary Joint Committee on Intelligence and Security and Parliamentary Joint Committee on Law Enforcement. Other review mechanisms include the Australian Human Rights Commission, Independent National Security Legislation Monitor and Australian Law Reform Commission. See Australian Law Reform Commission, Traditional Rights and Freedoms — Encroachments by Commonwealth Laws (Final Report) (2016) Ch 3. At https://www.alrc.gov.au/sites/default/files/pdfs/publications/alrc_129_final_report_.pdf (viewed 11 September 2017).]

The Commission notes that the Australian Law Reform Commission (ALRC) has made a number of suggestions to improve the mechanisms and processes for the scrutiny of laws for compatibility with rights and freedoms (including the PJCHR).[endnoteRef:9] [9: Australian Law Reform Commission, Traditional Rights and Freedoms — Encroachments by Commonwealth Laws (Final Report) (2016) 75–76 [3.95]. At https://www.alrc.gov.au/sites/default/files/pdfs/publications/alrc_129_final_report_.pdf (viewed 11 September 2017). The ALRC’s suggestions include additional guidance to policy makers during policy development and legislative drafting stages; improving quality of explanatory material and statements of compatibility; effective and appropriate streamlining of overlapping work across scrutiny committees; increasing time available to conduct scrutiny; and improving extent to which Parliament considers the scrutiny reports.]

That the Australian Government ensure that concerns raised by the Parliamentary Joint Committee on Human Rights are fully considered in the legislative process.

That the Australian Government ensure that all statements of compatibility are consistently of a high standard and are supported by evidence and analysis.

Domestic incorporation (CERD article 2; CO 9, 10 & 17)Incorporation of CERD

Australia implements CERD primarily through the RDA and the work of the Commission.[endnoteRef:10] There are also anti-discrimination laws at state and territory level relating to racial discrimination.[endnoteRef:11] [10: Australia’s states and territories also have a variety of anti-discrimination and human rights legislation. For an overview of the Racial Discrimination Act and its history in Australia, see Tim Soutphommasane, I’m Not Racist But … 40 Years of the Racial Discrimination Act (NewSouth, 2015).] [11: See, eg, Discrimination Act 1991 (ACT), Anti-Discrimination Act 1996 (NT), Anti-Discrimination Act 1977 (NSW), Equal Opportunity Act 2010 (Vic), Racial and Religious Tolerance Act 2001 (Vic), Anti-Discrimination Act 1991 (Qld), Equal Opportunity Act 1984 (SA), Equal Opportunity Act 1984 (WA). See Mutuma Ruteere, Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance on his mission to Australia, UN Doc A/HRC/35/41/Add.2 (9 June 2017) 6. At http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session35/Documents/A_HRC_35_41_Add_2_EN.docx (viewed 10 October 2017).]

The Commission notes the following gaps that remain in Australia’s domestic incorporation of CERD:

iv. The federal Parliament may by express words, or by implication, amend any existing federal legislation through the making of subsequent legislation. The federal Parliament can therefore amend or repeal the RDA as it sees fit.[endnoteRef:12] Accordingly, the RDA does not offer comprehensive protection against racially discriminatory laws passed by the federal Parliament. The most recent example of a federal law that overrode the RDA protections was the legislation that brought into effect the Northern Territory Emergency Response (also referred to as the ‘Northern Territory Intervention’).[endnoteRef:13] [12: George Williams and Daniel Reynolds, ‘The Racial Discrimination Act and Inconsistency under the Australian Constitution’ (2015) 36 Adelaide Law Review 241, 249–250. See also New South Wales v Commonwealth (2006) 229 CLR 1, 151 [307] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) (‘Work Choices Case’). ] [13: Northern Territory National Emergency Response Act 2007 (Cth), s 132(2) provided that: ‘The provisions of this Act, and any acts done under or for the purposes of those provisions, are excluded from the operation of Part II of the Racial Discrimination Act 1975’. Another example was the Native Title Amendment Act 1998 (Cth), which introduced a new s 7 into the Native Title Act 1993 (Cth) (NTA), which provides that the NTA is intended to be read and construed subject to the provisions of the RDA only to the extent of any ambiguous terms in the NTA. ]

v. Judicial interpretation of what constitutes ‘special measures’ under s 8 of the RDA does not fully comply with the Committee’s General Recommendation No 32.[endnoteRef:14] For example, there is no requirement that affected groups be consulted and participate in the design and implementation of proposed special measures. There is also no requirement for the objective of special measures to alleviate present disparities in the enjoyment of human rights, protect groups and individuals from discrimination or prevent further imbalances.[endnoteRef:15] The Committee is aware of successive governments’ reliance on special measures to implement racially discriminatory measures as part of the NT Intervention.[endnoteRef:16] [14: UN Committee on the Elimination of Racial Discrimination, General Recommendation No 32: The Meaning and Scope of Special Measures in the International Convention on the Elimination of Racial Discrimination, 75th sess, (24 September 2009) UN Doc CERD/C/GC/32. At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD%2fC%2fGC%2f32&Lang=en (viewed 23 October 2017).] [15: UN Committee on the Elimination of Racial Discrimination, General Recommendation No 32: The Meaning and Scope of Special Measures in the International Convention on the Elimination of Racial Discrimination, 75th sess, (24 September 2009) UN Doc CERD/C/GC/32, [18], [22]. At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD%2fC%2fGC%2f32&Lang=en (viewed 23 October 2017). Special measures in Australia also fall short of the Committee’s recommendations in [16], [17] and [34].] [16: Australian Human Rights Commission, Information concerning Australia and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Shadow Report to the CERD Committee (8 July 2010) 17–20 [61]–[64]. At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=INT%2fCERD%2fNGO%2fAUS%2f77%2f8048&Lang=en (viewed 23 October 2017). ]

vi. Australia made a reservation to CERD in relation to the criminalisation of racial hatred (article 4).[endnoteRef:17] The Government has recently maintained that it will not presently consider withdrawal of this reservation.[endnoteRef:18] [17: The reservation provides: ‘The Government of Australia … declares that Australia is not at present in a position specifically to treat as offences all the matters covered by article 4(a) of the Convention. Acts of the kind there mentioned are punishable only to the extent provided by the existing criminal law dealing with such matters as the maintenance of public order, public mischief, assault, riot, criminal libel, conspiracy and attempts. It is the intention of the Australian Government, at the first suitable moment, to seek from Parliament legislation specifically implementing the terms of article 4(a).’] [18: UN Human Rights Council, Report of the Working Group on the Universal PeriodicReview, Australia, Views on conclusions and/or recommendations, voluntary commitmentsand replies presented by the State under review, 35th sess, Agenda item 6, UN Doc A/HRC/31/14/Add.1 (29 February 2016) [7].]

The Commission notes that Australia’s constitutional arrangements do not fully protect against racial discrimination. In particular:

vii. Section 25 of the Australian Constitution contemplates the ability of Australian state governments to disqualify a group of people from voting based on race.

viii. Under Australia’s Constitution, the federal Parliament is permitted to make laws under enumerated ‘heads of power’ in s 51. Under s 51(xxix), the ‘external affairs power’, the federal Parliament may pass legislation that implements international treaty obligations.[endnoteRef:19] However, under s 51(xxvi), the ‘races power’, the federal Parliament may pass laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’.[endnoteRef:20] Judicial interpretation of the ‘races power’ suggests that it is not limited to matters that are beneficial in nature and could validly support the passage of adverse racially discriminatory laws.[endnoteRef:21] [19: The Commonwealth v Tasmania (‘The Tasmanian Dam Case’) (1983) 158 CLR 1.] [20: Australian Constitution, s 51(xxvi). ] [21: Kartinyeri v Commonwealth (1998) 152 ALR 540.]

There have been calls for the repeal of s 25 and the reform or repeal of the ‘races power’ as a means of removing the potential for discrimination on the basis of race from the Constitution.[endnoteRef:22] [22: In 2012, the Expert Panel on Constitutional Recognition of Indigenous Australians relevantly recommended that ss 25 and 51(xxvi) be repealed and that provisions on the constitutional recognition of Aboriginal and Torres Strait Islander peoples and a prohibition of racial discrimination be introduced. See Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution — Report of the Expert Panel (2012) xviii (Recommendations 3–5). At https://www.pmc.gov.au/sites/default/files/publications/Recognising-Aboriginal-and-Torres-Strait-Islander-Peoples-in-the-constitution-report-of-the-expert-panel_0.pdf (viewed 23 October 2017). In 2015, the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples offered similar recommendations. See Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Final Report (2015) xiii (Recommendations 3–5). At https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Constitutional_Recognition_of_Aboriginal_and_Torres_Strait_Islander_Peoples/Constitutional_Recognition/Final_Report (viewed 23 October 2017).]

Recently, the Australian Government appointed a Referendum Council to identify how best to recognise Aboriginal and Torres Strait Islander peoples in the Australian Constitution. In that context, the Referendum Council recommended the monitoring of the use of the ‘races power’.[endnoteRef:23] It did not otherwise recommend the repeal or amendment of the ‘races power’ or s 25, noting that it ‘does not go far enough and would not be acceptable to Aboriginal and Torres Strait Islander peoples’.[endnoteRef:24] The Commission directs attention to section 5.3 below regarding constitutional recognition of Aboriginal and Torres Strait Islander peoples. [23: Referendum Council, Final Report of the Referendum Council (30 June 2017) 2 (Recommendation 1). At https://www.referendumcouncil.org.au/sites/default/files/report_attachments/Referendum_Council_Final_Report.pdf (viewed 23 October 2017). ] [24: Referendum Council, Final Report of the Referendum Council, 5, 12–13, 23–24. At https://www.referendumcouncil.org.au/sites/default/files/report_attachments/Referendum_Council_Final_Report.pdf (viewed 23 October 2017).]

To our knowledge, the Australian Government has not articulated a position on constitutional reform of s 25 and the ‘races power’. In relation to these constitutional issues, the Commission has previously suggested the:

ix. removal of s 25, and

x. insertion of a provision guaranteeing, for all Australians, equality before the law and freedom from discrimination, with such a protection drafted in a way that would guide the operation of the ‘races power’ to ensure that ‘special laws’ for the people of a particular race could not be made if they were (adversely) discriminatory.[endnoteRef:25] [25: Australian Human Rights Commission, Constitutional reform: Creating a nation for all of us (2011) 15. At https://www.humanrights.gov.au/publications/constitutional-reform-creating-nation-all-us-2011 (viewed 23 October 2017). See also Australian Human Rights Commission, Social Justice Report 2008 (2009) 62–76. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport08/index.html (viewed 23 October 2017).]

The scrutiny provided for by the PJCHR, while a welcome extension of existing parliamentary rights review mechanisms, is not a substitute for full incorporation of CERD into domestic law through mechanisms such as a national human rights Act. The Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance (Special Rapporteur on racial discrimination), the Special Rapporteur on rights of indigenous peoples and the Special Rapporteur on human rights of migrants have each recently recommended that Australia adopt some form of comprehensive federal human rights Act, such as a bill or charter of rights.[endnoteRef:26] [26: Mutuma Ruteere, Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance on his mission to Australia, UN Doc A/HRC/35/41/Add.2 (9 June 2017) 17 [71]. At http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session35/Documents/A_HRC_35_41_Add_2_EN.docx (viewed 10 October 2017); Felipe González Morales, Report of the Special Rapporteur on the human rights of migrants on his mission to Australia and the regional processing centres in Nauru, UN Doc A/HRC/35/25/Add.3 (24 April 2017) 19. At http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/35/25/Add.3 (viewed 10 October 2017); Victoria Tauli-Corpuz, Report of the Special Rapporteur on the rights of indigenous peoples on her visit to Australia, UN Doc A/HRC/36/46/Add.2 (8 August 2017) 17 [107]. At http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/36/46/Add.2 (viewed 10 October 2017).]

The Commission considers that full incorporation of CERD requires a comprehensive protection against any racially discriminatory federal laws.

That the Australian Government:

· fully incorporate CERD into Australian law

· ensure that federal laws do not undermine the protections in the Racial Discrimination Act 1975 (Cth), and

· explore options to remove any potential for racially discriminatory laws to be passed under the Australian Constitution. The Commission notes that this is a separate issue to developing with Aboriginal and Torres Strait Islander peoples a model for their recognition in the Australian Constitution and negotiating in good faith with Aboriginal and Torres Strait Islander peoples about national representative mechanisms.

Implementation of Committee’s Concluding Observations

The Commission notes that Australia’s 18th to 20th periodic report was due on 30 October 2014, but only submitted to the Committee on 2 February 2016. The Commission commends the Australian Government’s establishment of a Standing National Human Rights Mechanism to strengthen its engagement with human rights reporting. This is an opportunity to improve the timeliness of Australia’s responses to UN treaty body communications.

The Commission also notes that there is no domestic mechanism in place to consider, coordinate or implement the recommendations or the concluding observations of the Committee.

That the Australian Government introduce formal mechanisms to consider and implement recommendations of treaty committees, including the concluding observations of the Committee in relation to Australia’s 18th to 20th periodic report under CERD.

Ratification of OPCAT

The Commission remains concerned by the gaps in independent monitoring of places of detention in Australia (including in respect of population groups which are prone to racial discrimination, particularly of Aboriginal and Torres Strait Islander peoples and refugees and asylum seekers).

On 9 February 2017, the Australian Government announced its intention to ratify the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). OPCAT provides for ongoing independent monitoring of places of detention, to ensure adherence to minimum standards in conditions and treatment.

The Commission commends the Australian Government’s commitment to ratify OPCAT by December 2017.[endnoteRef:27] [27: Minister for Foreign Affairs, The Hon Julie Bishop MP and Attorney General (Cth), Senator the Hon George Brandis QC, ‘Improving oversight and conditions in detention’ (Media Release, 9 February 2017). At https://www.attorneygeneral.gov.au/Mediareleases/Pages/2017/FirstQuarter/Improving-oversight-and-conditions-in-detention.aspx (viewed 11 September 2017).]

That the Australian Government fulfil its commitment to ratify the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) by December 2017 and commence its progressive implementation immediately thereafter.

Other relevant instruments

The Commission notes that the Australian Government has not ratified the Convention on Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) and is not a party to ILO Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries. The Commission considers that ratification of these instruments would assist Australia’s compliance with CERD.[endnoteRef:28] [28: The Special Rapporteur on racial discrimination has recommended that the Australian Government expedite ratification of the ICRMW and the ILO Conventions on the protection of migrant workers and on Indigenous rights: see Mutuma Ruteere, Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance on his mission to Australia, Human Rights Council, 35th sess, UN Doc A/HRC/35/41/Add.2 (9 June 2017) 17 [71].]

As noted in section 5.2 below, the Commission also considers that the Australian Government should give effect to the UN Declaration on the Rights of Indigenous Peoples.

That the Australian Government consider ratification of the Convention on Protection of the Rights of All Migrant Workers and Members of Their Families and other international instruments relating to issues of racial discrimination.

Education (CERD article 7; CO 11, 21 & 27)Human rights education in the national curriculum

The Commission commends the inclusion of some references to human rights in the national school curriculum, but considers that this could be improved.

The Special Rapporteur on the rights of indigenous peoples noted that the mainstream education system contains inadequate components of Aboriginal and Torres Strait Islander history and the impact of colonisation.[endnoteRef:29] [29: Victoria Tauli-Corpuz, Report of the Special Rapporteur on the rights of indigenous peoples on her visit to Australia, UN Doc A/HRC/36/46/Add.2 (8 August 2017) 7 [31]. At http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/36/46/Add.2 (viewed 10 October 2017).]

The Special Rapporteur on racial discrimination noted that the teaching of Indigenous subjects, particularly of languages and cultures, remains non-existent or very rare.[endnoteRef:30] The Commission welcomes the recent Aboriginal Languages Act 2017 No 51 (NSW), which received assent on 24 October 2017. The Act establishes an ‘Aboriginal Languages Trust’ to bring together persons with relevant profession qualifications in languages and persons with knowledge of Aboriginal languages to perform various functions, including promotion of education in Aboriginal language activities.[endnoteRef:31] The Commission considers it important that sufficient ongoing funding be provided to the Aboriginal Languages Trust so that it can successfully fulfil its functions. The Commission also considers it important for the NSW government to ensure that the legislation does not seek to impose ministerial controls or intervention in relation to Aboriginal languages.[endnoteRef:32] [30: Mutuma Ruteere, Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance on his mission to Australia, UN Doc A/HRC/35/41/Add.2 (9 June 2017) 13 [50]. At http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session35/Documents/A_HRC_35_41_Add_2_EN.docx (viewed 10 October 2017).] [31: Aboriginal Languages Act 2017 No 51 (NSW), ss 4-6. At https://www.legislation.nsw.gov.au/#/view/act/2017/51 (viewed 20 October 2017).] [32: See the concerns of the NSW Aboriginal Land Council in Bridget Brennan, ‘NSW introduces nation's first laws to recognise and revive Indigenous languages’ ABC News (online) 11 October 2017. At http://www.abc.net.au/news/2017-10-11/nsw-passes-unprecedented-laws-to-revive-indigenous-languages/9039746 (viewed 30 October 2017). ]

That the Australian Government incorporate more comprehensive human rights education (including in relation to racial discrimination and CERD) in the national school curriculum.

Multiculturalism education in the national curriculum

While surveys consistently demonstrate strong public support for multiculturalism in Australia,[endnoteRef:33] public understanding about cultural diversity can be strengthened. In more general terms, Australians’ civic knowledge, including their understanding of the political system, has been found to be low.[endnoteRef:34] A more comprehensive civics education, including through the formal school curriculum, could encompass a clear articulation of multiculturalism and values of cultural diversity. [33: See, eg, Andrew Markus, Mapping Social Cohesion: The Scanlon Foundation surveys 2016 (Monash University, 2016). At http://scanlonfoundation.org.au/research/surveys (viewed 27 April 2017).] [34: Ian McAllister, The Australian Voter (UNSW Press, 2011) 66. ]

The Commission refers to the recent parliamentary inquiry into strengthening multiculturalism and the resulting report of the Select Committee on Strengthening Multiculturalism.[endnoteRef:35] Noting the social and economic value of a multilingual Australia, and the role of interfaith and intercultural understanding in promoting social cohesion, the Select Committee has recommended the development of an intercultural and multicultural education curriculum including ‘compulsory language education’ and ‘comprehensive intercultural education’ for primary and secondary school students.[endnoteRef:36] [35: Senate Select Committee on Strengthening Multiculturalism, Parliament of Australia, Ways of protecting and strengthening Australia’s multiculturalism and social inclusion (2017). At http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Strengthening_Multiculturalism/Multiculturalism/Final_report (viewed 11 October 2017).] [36: Senate Select Committee on Strengthening Multiculturalism, Parliament of Australia, Ways of protecting and strengthening Australia’s multiculturalism and social inclusion (2017) 70–71 [4.51] (Recommendation 7). At http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Strengthening_Multiculturalism/Multiculturalism/Final_report (viewed 11 October 2017).]

That the Australian Government strengthen public education about multiculturalism, including through the national school curriculum.

Human rights education in the public service

The Commission considers that human rights education for public servants could be improved, especially for those officials in the administration of justice and with legislative responsibilities to develop statements of compatibility with human rights for newly proposed legislation.

The Commission also notes that Australia’s activities for the World Program for Human Rights Education are uncoordinated and not systematic.

Recommendation 1: That the Australian Government support human rights education for all areas of the public sector, particularly in the administration of justice and places of detention, including targeted initiatives for public officials.

National Anti-Racism Strategy

Education initiatives such as the National Anti-Racism Partnership and Strategy (the Strategy), coordinated by the Commission, play a vital role in supporting the maintenance of racial tolerance. The aim of the Strategy is to promote a clear understanding in the Australian community of what racism is, and how it can be prevented and reduced.[endnoteRef:37] [37: Australian Human Rights Commission, National Anti-Racism Strategy and Racism. It Stops with Me Campaign. At https://www.humanrights.gov.au/our-work/race-discrimination/projects/national-anti-racism-strategy-and-racism-it-stops-me-campaign (viewed 8 December 2016).]

The Commission conducted an evaluation of the Strategy in 2015 and concluded that it has been effective in raising awareness of racism and how best to respond to it.[endnoteRef:38] [38: Australian Human Rights Commission, National Anti-Racism Strategy and Racism. It Stops with Me: Summary Evaluation and Future Direction, June 2015, 45. At https://www.humanrights.gov.au/our-work/race-discrimination/publications/national-anti-racism-strategy-and-racism-it-stops-me (viewed 10 October 2017). ]

A key component of the Strategy is a national anti-racism campaign, Racism. It Stops with Me.[endnoteRef:39] The campaign now has more than 360 organisational supporters, from across local and state governments, business, education, sporting organisations, the arts and civil society. [39: Australian Human Rights Commission, Racism. It Stops with Me Campaign, at https://itstopswithme.humanrights.gov.au/ (viewed 30 October 2017). ]

The Commission commends the Australian Government’s commitment to support the Strategy and the Racism. It Stops with Me campaign. [endnoteRef:40] [40: UN Human Rights Council, Report of the Working Group on the Universal PeriodicReview, Australia, Views on conclusions and/or recommendations, voluntary commitmentsand replies presented by the State under review, 35th sess, Agenda item 6, UN Doc A/HRC/31/14/Add.1 (29 February 2016) [19].]

The Commission notes that the Select Committee on Strengthening Multiculturalism has recommended that the Australian Government continue to provide ongoing support for the Strategy, through continuing to fund activities that raise public awareness and empower individuals and communities to prevent and reduce the incidence of racism, and promoting the Strategy at relevant opportunities.[endnoteRef:41] [41: Senate Select Committee on Strengthening Multiculturalism, Parliament of Australia, Ways of protecting and strengthening Australia’s multiculturalism and social inclusion (2017) 71 [4.53] (Recommendation 8). At http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Strengthening_Multiculturalism/Multiculturalism/Final_report (viewed 11 October 2017).]

That the Australian Government continue to support the anti-racism and other educative work of the Commission, including the National Anti-Racism Partnership and Strategy.

Racial discrimination in AustraliaMulticultural Australia

Australia has experienced successive waves of mass immigration since the end of the Second World War. An estimated 26% of the Australian population was born overseas and about 49% of the Australian population has at least one parent who was born overseas.[endnoteRef:42] The two largest source countries of permanent settlement are currently China and India.[endnoteRef:43] [42: Australian Bureau of Statistics, Census of Population and Housing: Australia Revealed, 2016 (online) (27 June 2016). At http://www.abs.gov.au/ausstats/abs@.nsf/mf/2024.0 (viewed 20 October 2017). ] [43: Australian Parliamentary Library, Migration to Australia: a quick guide to the statistics (27 June 2016). At http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1516/Quick_Guides/MigrationStatistics (viewed 30 October 2017).]

Australia has been highly successful in the economic and civic integration of immigrants. In 2015 the ‘foreign-born’ unemployment rate was lower than the ‘native-born’ rate, and was the fifth lowest in the OECD.[endnoteRef:44] The children of immigrants constitute a higher proportion of people in highly skilled occupations than the children of ‘native-born’ parents.[endnoteRef:45] [44: In 2015, the foreign-born unemployment rate was lower than the native-born rate, and the fifth lowest in the OECD: Organization for Economic Cooperation and Development, Foreign-born unemployment (2016). At https://data.oecd.org/migration/foreign-born-unemployment.htm (viewed 30 October 2017).] [45: Thomas Liebig and Sarah Widmaier, ‘Children of Immigrants in the Labour Markets of EU and OECD Countries: An Overview’ (Paper presented at the Joint Technical Seminar on ‘The Labour Market Integration of the Children of Immigrants’, Brussels, 1–2 October 2009) 17, 23. At www.oecd.org/berlin/43880918.pdf (viewed 30 October 2017). ]

In the Scanlon Foundation’s Australians Today survey, almost two-thirds of migrant respondents indicated a sense of belonging in Australia to a ‘great’ or ‘moderate’ extent, while only 9% of recent arrivals indicated no sense of belonging in Australia ‘at all’.[endnoteRef:46] [46: Andrew Markus, Australians Today: The Australia@2015 Scanlon Foundation Survey (2016) Scanlon Foundation, Australian Multicultural Foundation and Monash University, 99. At http://scanlonfoundation.org.au/wp-content/uploads/2016/08/Australians-Today.pdf (viewed 30 October 2017).]

The Commission further notes that migrants to Australia have a high uptake of citizenship.[endnoteRef:47] The national Au@2015 survey found that 82% of those migrants who had been resident in Australia for between 15 and 24 years had become citizens. The highest take-up of citizenship for those who had been resident in Australia for between five and nine years was by migrants from South Sudan (91%), Iraq (89%), and the Philippines (83%).[endnoteRef:48] [47: Andrew Markus, Australians Today: The Australia@2015 Scanlon Foundation Survey (Scanlon Foundation, Australian Multicultural Foundation and Monash University, 2016) 103. At http://scanlonfoundation.org.au/wp-content/uploads/2016/08/Australians-Today.pdf (viewed 30 October 2017).] [48: Andrew Markus, Australians Today: The Australia@2015 Scanlon Foundation Survey (Scanlon Foundation, Australian Multicultural Foundation and Monash University, 2016) 103. At http://scanlonfoundation.org.au/wp-content/uploads/2016/08/Australians-Today.pdf (viewed 30 October 2017).]

Racial discrimination generally

Despite Australia’s success as a multicultural nation, racial discrimination continues to be present in Australian society.

The Commission draws the Committee’s attention to the Scanlon Foundation’s 2016 ‘Mapping Social Cohesion’ Survey report (2016 Scanlon Survey).[endnoteRef:49] The 2016 Scanlon Survey brings together a series of detailed surveys on social cohesion, immigration and population issues in Australia. [49: Andrew Markus, Mapping Social Cohesion: The Scanlon Foundation surveys 2016 (Monash University, 2016). At http://scanlonfoundation.org.au/research/surveys (viewed 30 October 2017).]

According to the 2016 Scanlon Survey, those of non-English speaking backgrounds in the Australian population reported the highest experience of discrimination, 27% compared to 17% of those born in Australia and 19% of those born overseas in English speaking countries.[endnoteRef:50] [50: Andrew Markus, Mapping Social Cohesion: The Scanlon Foundation surveys 2016 (Monash University, 2016) 26. At http://scanlonfoundation.org.au/research/surveys (viewed 30 October 2017). ]

The 2016 Scanlon Survey also reveals an increase of 5% in the number of respondents indicating experience of discrimination based on skin colour, ethnicity or religion, from 15% to 20%. This is the highest level recorded in the history of the Scanlon Foundation Surveys.[endnoteRef:51] [51: Andrew Markus, Mapping Social Cohesion: The Scanlon Foundation surveys 2016 (Monash University, 2016) 4. At http://scanlonfoundation.org.au/research/surveys (viewed 30 October 2017).]

In its national consultations in 2015, which focused on lived experiences of racism, the Commission found the persistence of the following forms of racial discrimination: discrimination in employment; racial vilification and bigotry; and social exclusion.[endnoteRef:52] It also found strong community support for existing legislative protections against racial discrimination and hatred.[endnoteRef:53] This is a finding supported by survey evidence.[endnoteRef:54] [52: Australian Human Rights Commission, Freedom from Discrimination: Report on the 40th Anniversary of the Racial Discrimination Act (2015), 34–41.] [53: Australian Human Rights Commission, Freedom from Discrimination: Report on the 40th Anniversary of the Racial Discrimination Act (2015), 47–49. ] [54: For example, Andrew Jakubowicz, Kevin Dunn and Rachel Sharples, found, as part of the Cyber Racism and Community Resilience Research Project, that only 10% of Australians believe people should have the freedom to ‘insult’ and ‘offend’ people on the basis of race, culture or religion and that over 75% are opposed. See Andrew Jakubowicz, Kevin Dunn and Rachel Sharples, ‘Australians believe 18C protections should stay’, The Conversation (online) 17 February 2017. At https://theconversation.com/australians-believe-18c-protections-should-stay-73049 (viewed 23 October 2017); Andrew Jakubowicz, Kevin Dunn and Rachel Sharples, ‘What do Australian internet users think about racial vilification?’ The Conversation (online) 17 March 2014. At https://theconversation.com/what-do-australian-internet-users-think-about-racial-vilification-24280 (viewed 23 October 2017); Cyber Racism and Community Resilience Research Project (CRaCR), An inquiry into freedom of speech in Australia, Submission No 54 to the Parliamentary Joint Committee on Human Rights (9 December 2016). At https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia/Submissions (viewed 23 October 2017); Cyber Racism and Community Resilience Research Project (CRaCR), An inquiry into freedom of speech in Australia, Submission No 54.1 to the Parliamentary Joint Committee on Human Rights (9 December 2016). At https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights_inquiries/FreedomspeechAustralia/Submissions (viewed 23 October 2017). Also, in March 2017, a Fairfax-Ipsos poll of 1400 voters found that 78% of Australians believe it should be unlawful to offend, insult or humiliate someone on the basis of their race or ethnicity. However, when the same question was asked in 2014, 88% of respondents said it should be unlawful to offend, insult or humiliate someone on the basis of race. See Matthew Knott, ‘Fairfax-Ipsos poll: Eight in 10 voters oppose Turnbull government's 18C race hate law changes’, The Sydney Morning Herald (online) 28 March 2017. At http://www.smh.com.au/federal-politics/political-news/fairfaxipsos-poll-eight-in-10-voters-oppose-turnbull-governments-18c-race-hate-law-changes-20170327-gv7dlq.html (viewed 23 October 2017). ]

In carrying out its conciliation function, the Commission records statistics relating to complaints of discrimination, harassment and vilification. In the 2016–17 reporting year, 21% of all complaints (409 complaints) received by the Commission were received under the Racial Discrimination Act 1975 (Cth) (RDA). Of those complaints, 26% related to employment, 20% related to the provision of goods and services, and 34% related to racial hatred.[endnoteRef:55] [55: Australian Human Rights Commission, 2016–2017 Complaint Statistics (2017). At https://www.humanrights.gov.au/our-work/commission-general/publications/annual-report-2016-2017 (viewed 26 October 2017). ]

That the Australian Government recognise the importance of maintaining effective legal protections against racial discrimination and hatred in setting a standard for public conduct in a multicultural society.

Strengthening multiculturalism

The Commission considers that strengthening multiculturalism is an important aspect of protecting persons from racial discrimination, improving cultural diversity in institutions and organisations and promoting CERD rights.

Multiculturalism policy (CERD article 2; CO 14)

The Commission commends the Australian Government’s 2017 multicultural policy statement, ‘Multicultural Australia: United, Strong, Successful’. The statement rejects racism, affirms the value of mutual respect, and emphasises the safety and productivity of Australia.[endnoteRef:56] [56: Australian Government, ‘Australian Government’s Multicultural Statement’ (March 2017). At https://www.dss.gov.au/settlement-and-multicultural-affairs/australian-governments-multicultural-statement/australian-governments-multicultural-statement (viewed 30 October 2017).]

That the Australian Government continue to support a policy of multiculturalism as a means of promoting social cohesion, cultural harmony and national unity.

Multiculturalism legislation (CERD article 2; CO 14)

The Commission considers that public recognition of Australian multiculturalism is important.

The Select Committee on Strengthening Multiculturalism recommended that the Australian Government consider developing and implementing a federal Multicultural Act to enshrine agreed principles of multiculturalism to support and frame multiculturalism in Australia.[endnoteRef:57] Others have also advocated for the introduction of a federal Multicultural Act.[endnoteRef:58] [57: Senate Select Committee on Strengthening Multiculturalism, Parliament of Australia, Ways of protecting and strengthening Australia’s multiculturalism and social inclusion (2017) 80 [5.25] (Recommendation 9). At http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Strengthening_Multiculturalism/Multiculturalism/Final_report (viewed 11 October 2017).] [58: See, eg, Federation of Ethnic Communities Councils of Australia, Submission No 100 to Joint Standing Committee on Migration, Migrant Settlement Outcomes, 19 February 2017, 2–3.]

The Commission notes that Parliament may be well positioned to clarify the meaning of multiculturalism in Australia and that an annual parliamentary statement of multicultural principles may be an appropriate mechanism for a regular re-commitment to multicultural values and cultural diversity. In 2016 Parliament reiterated its ‘commitment to maintaining Australia as a culturally diverse, tolerant and open society, united by an overriding commitment to our nation, and its democratic institutions and values’.[endnoteRef:59] [59: Prime Minister of Australia, The Hon Malcolm Turnbull MP, Racial Tolerance Motion — Address to Parliament (10 October 2016). At https://www.pm.gov.au/media/2016-10-10/racial-tolerance-motion-address-parliament (viewed 30 October 2017).]

That the Australian Parliament consider further public recognition of Australian multiculturalism, including periodic public statements affirming parliamentarians’ support of a multicultural Australia.

Policy machinery (CERD article 2; CO 14)

The Commission considers that the Australian Government can strengthen the policy machinery for multiculturalism. An Office of Multicultural Affairs functioned in the 1980s and 1990s. Such an office would ensure coordinated leadership on multicultural affairs and, if established in an appropriate departmental home (such as the Department of Prime Minister and Cabinet), would send a strong message about multiculturalism being a policy priority.

The Commission also notes that the Select Committee on Strengthening Multiculturalism recommended that the Australian Government, in consultation with relevant government, non-government and community bodies, consider developing and implementing federal legislation to establish an ongoing Multicultural Commission that is sufficiently resourced to promote and protect multiculturalism throughout Australia, ensuring that all Australians recognise that multiculturalism is essential to the fabric of the Australian nation.[endnoteRef:60] [60: Senate Select Committee on Strengthening Multiculturalism, Parliament of Australia, Ways of protecting and strengthening Australia’s multiculturalism and social inclusion (2017) [5.38] (Recommendation ). At http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Strengthening_Multiculturalism/Multiculturalism/Final_report (viewed 11 October 2017).]

That the Australian Government strengthen the policy machinery of Australian multiculturalism, including through the re-establishment of an Office of Multicultural Affairs.

Citizenship requirements (CERD article 2; CO 14)

The Commission is concerned about the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 (Cth), which, if passed, will make it more difficult to obtain Australian citizenship by: imposing additional requirements on people seeking to obtain Australian citizenship by conferral;[endnoteRef:61] centralising discretionary power in the hands of the Minister to make decisions about who should and who should not be an Australian citizen, with very limited rights of external review; and reducing the ability of particular groups of people to qualify for citizenship.[endnoteRef:62] [61: The proposed additional requirements include increasing residency requirements to four years permanent residency; increasing the language requirements of the English language from ‘basic knowledge’ to ‘competent English’; a new requirement that a person ‘has integrated into the Australian community’, amongst others.] [62: Groups include: children born in Australia to asylum seeker or refugee parents, even after those children have been lawfully in Australia for up to 10 years; children born in Australia to parents who had a valid visa but overstayed the visa before the child’s 10th birthday; children who are found abandoned in Australia; children as young as 10 years old that the Minister considers are not of good character; people with mental illness or cognitive impairment who come into contact with the criminal justice system.]

A Senate Legal and Constitutional Affairs Committee inquiry into the Bill recommended that the Senate pass the Bill subject to numerous proposed amendments, including lowering the standard for English-level competency.[endnoteRef:63] The Senate Select Committee for Strengthening Multiculturalism, however, recommended that the Bill not be passed.[endnoteRef:64] [63: Senate Legal and Constitutional Affairs Committee, Parliament of Australia, Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 (5 September 2017) 46 [3.122]–[3.125]. At https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/CitizenshipBill2017/Report (viewed 11 October 2017).] [64: Senate Select Committee on Strengthening Multiculturalism, Parliament of Australia, Ways of protecting and strengthening Australia’s multiculturalism and social inclusion (2017) 31 [2.83] (Recommendation 2). At http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Strengthening_Multiculturalism/Multiculturalism/Final_report (viewed 11 October 2017).]

The Bill passed the Australian House of Representatives on 14 August 2017. However, the Bill was discharged from the Notice Paper in the Australian Senate on 18 October 2017 and is no longer under active consideration.[endnoteRef:65] [65: See Parliament of Australia, Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 (2017). At https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5914 (viewed 20 October 2017). ]

The Commission also notes the Australian Government’s ongoing consultation regarding simplification of Australia’s visa system.[endnoteRef:66] [66: Australian Government, Policy Consultation Paper — Visa Simplification: Transforming Australia’s Visa System (15 September 2017) Department of Immigration and Border Protection. At https://www.border.gov.au/Trav/visa-reform/policy-consultation-paper (viewed 10 October 2017). ]

Recommendation 2: That the Australian Parliament not pass the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 in its current form.

Recommendation 3: That the Australian Government ensure that any amendment to Australia’s visa system comply with international human rights law (including rights enshrined in CERD).

Cultural diversity in Australian organisations and institutions (CERD article 5; CO 14)Leadership

There is currently a limited level of cultural diversity represented in the leadership of Australian organisations and institutions.[endnoteRef:67] [67: Australian Human Rights Commission, Leading for Change: A blueprint for cultural diversity and inclusive leadership (2016). At https://www.humanrights.gov.au/sites/default/files/document/publication/2016_AHRC%20Leading%20for%20change.pdf (viewed 30 October 2017). Similar observations have been made in research work published by Diversity Council Australia, which has also collected data on cultural diversity in corporate Australia. See, eg, Diversity Council Australia, ‘Capitalising on culture: A Study of the Cultural Origins of ASX 200 Business Leaders’ (2013). At https://www.dca.org.au/research/project/capitalising-culture (Executive Summary publicly available) (viewed 30 October 2017).]

The Commission notes the 2016 Blueprint for cultural diversity and inclusive leadership, Leading for Change, a publication of the Working Group on Cultural Diversity and Inclusive Leadership, convened by the Race Discrimination Commissioner.[endnoteRef:68] The Blueprint provides a snapshot of the cultural composition of senior leaders in Australian business, politics, government and civil society. The Blueprint found an ‘under-representation’ of cultural diversity in leadership positions in Australia. It notes that: [68: Australian Human Rights Commission, Westpac Group, PWC, University of Sydney, and Telstra, Leading for Change: A blueprint for cultural diversity and inclusive leadership (July 2016). At http://www.pwc.com.au/publications/diversity-leading-for-change-jul16.html (viewed 10 October 2017). The group consists of the Australian Human Rights Commission, the University of Sydney Business School, Westpac, PwC Australia and Telstra. Together, the group shares its experiences in embracing cultural diversity and inclusive leadership.]

· of CEOs in ASX 200 companies, 76.62% had an ‘Anglo-Celtic’ background, 18.41% had a ‘European’ background, 4.98% had a ‘non-European’ background and none had an ‘Indigenous’ background

· of federal parliamentarians, 78.76% had an ‘Anglo-Celtic’ background, 15.93% had a ‘European’ background, 3.54% had a ‘non-European’ background and 1.77% had an ‘Indigenous’ background

· of federal Ministers and Assistant Ministers, 85.71% had an ‘Anglo-Celtic’ background, 11.90% had a ‘European’ background, 2.38% had an ‘Indigenous’ background and none had a ‘non-European’ background

· of federal and state public service leaders (Secretaries and heads of departments), 82.26% had an ‘Anglo-Celtic’ background, 15.32% had a ‘European’ background, 1.61% had a ‘non-European’ background and 0.81% had an ‘Indigenous’ background

· of university Vice-Chancellors, 85% had an ‘Anglo-Celtic’ background, 15% had a ‘European’ background, and none had a ‘non-European’ or ‘Indigenous’ background.[endnoteRef:69] [69: Australian Human Rights Commission, Westpac Group, PWC, University of Sydney, and Telstra, Leading for Change: A blueprint for cultural diversity and inclusive leadership (July 2016) 2. At http://www.pwc.com.au/publications/diversity-leading-for-change-jul16.html (viewed 10 October 2017).]

Media

A Screen Australia study on diversity in Australian TV drama in 2016 found an underrepresentation of culturally diverse, ‘non-Anglo-Celtic’ groups on Australian television. The study notes that people of ‘non-European’ backgrounds were particularly underrepresented. [endnoteRef:70] [70: Screen Australia, Seeing ourselves: reflections on diversity in Australian TV drama (2016) At https://www.screenaustralia.gov.au/fact-finders/reports-and-key-issues/reports-and-discussion-papers/seeing-ourselves (viewed 3 May 2017). ]

The Commission refers to its 2010 review of human rights and social inclusion issues affecting African Australians (In Our Own Words report),[endnoteRef:71] and notes that African Australians expressed concern about the negative coverage of their communities in the mainstream media, often triggered by comments from public figures, which influenced overall perceptions of their communities and undermined their relationships with the broader Australian community.[endnoteRef:72] [71: Australian Human Rights Commission, In our own words — African Australians: A review of human rights and social inclusion issues (2010). At https://www.humanrights.gov.au/our-work/race-discrimination/projects/our-own-words-african-australians-review-human-rights-and (viewed 10 October 2017). ] [72: Australian Human Rights Commission, In our own words — African Australians: A review of human rights and social inclusion issues (2010). At https://www.humanrights.gov.au/our-work/race-discrimination/projects/our-own-words-african-australians-review-human-rights-and (viewed 10 October 2017).]

The Select Committee on Strengthening Multiculturalism concluded that the evidence presented throughout its inquiry into multiculturalism demonstrated a lack of diversity in on-screen media content, which is in part due to systemic barriers to participation by, and representation of, culturally and linguistically diverse communities. The Select Committee recommended that all media broadcasters seek to improve pathways for culturally and linguistically diverse individuals and communities to participate in broadcast media. [endnoteRef:73] [73: Senate Select Committee on Strengthening Multiculturalism, Parliament of Australia, Ways of protecting and strengthening Australia’s multiculturalism and social inclusion (2017) 56 [3.86]–[3.88] (Recommendation 5). At http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Strengthening_Multiculturalism/Multiculturalism/Final_report (viewed 11 October 2017).]

Law enforcement

The Special Rapporteur on racial discrimination, in the report of his recent country visit to Australia, has recommended that the Australian Government ensure that law enforcement agencies, in particular police forces, reflect the diversity of Australian society and the communities they serve and increase their intake of recruits from Indigenous and minority communities. [endnoteRef:74] [74: Mutuma Ruteere, Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance on his mission to Australia, Human Rights Council, 35th sess, UN Doc A/HRC/35/41/Add.2 (9 June 2017) 17 [72].]

That the Australian Government consider the recommendations of the Select Committee on Strengthening Multiculturalism and investigate pathways to improve cultural diversity in Australian institutions and organisations.

Data collection (CERD article 2; CO 23)

The Commission refers to its own collection of data relating to complaints of discrimination, harassment and vilification.[endnoteRef:75] [75: Australian Human Rights Commission, 2016–2017 Complaint Statistics (2017). At https://www.humanrights.gov.au/our-work/commission-general/publications/annual-report-2016-2017 (viewed 26 October 2017).]

The Commission is concerned that there is currently no comprehensive process in Australia for collecting data on crimes motivated by racial hatred or prejudice.[endnoteRef:76] The Commission refers to and endorses the recommendation of the Select Committee on Strengthening Multiculturalism that the Australian Government consider developing options for collecting more comprehensive data on issues concerning multiculturalism and racially motivated crimes.[endnoteRef:77] [76: Australian Human Rights Commission, Agenda for Racial Equality (2012–2016) (2012). At https://www.humanrights.gov.au/our-work/race-discrimination/publications/agenda-racial-equality-2012-2016 (viewed 30 October 2017).] [77: Senate Select Committee on Strengthening Multiculturalism, Parliament of Australia, Ways of protecting and strengthening Australia’s multiculturalism and social inclusion (2017) [5.57] (Recommendation 12). At http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Strengthening_Multiculturalism/Multiculturalism/Final_report (viewed 11 October 2017).]

The Commission strongly considers that there is a need for the Australian Government to collect better data on cultural diversity in Australian organisations and institutions.

The Commission draws the Committee’s attention to the UK Race Disparity Audit, a governmental audit into racial disparities performed across Britain to examine how people of different backgrounds are treated across areas including health, education, employment and the criminal justice system.[endnoteRef:78] The Prime Minister of the United Kingdom, Theresa May, has said that the audit data may be ‘uncomfortable’, but will also be ‘regarded as the central resource in the battle to defeat ethnic injustice’.[endnoteRef:79] The Commission encourages the Australian Government to commission a comprehensive audit into racial disparity in Australia. [78: UK Cabinet Office, Race Disparity Audit — Summary Findings from the Ethnicity Facts and Figures Website (October 2017). At https://www.gov.uk/government/publications/race-disparity-audit (viewed 12 October 2017). ] [79: Prime Minister of the United Kingdom, The Rt Hon Theresa May MP, ‘Speech of 10 October 2017’, Race Disparity Audit Launch: 10 October 2017, UK Government (online) 10 October 2017. At https://www.gov.uk/government/speeches/pm-words-at-race-disparity-audit-launch-10-october-2017 (viewed 12 October 2017). ]

That the Australian Government collect more comprehensive data on racial discrimination, racially motivated crimes, cultural diversity and multiculturalism generally.

The Commission considers this to be of such importance that the Committee should request an update from the Australian Government on progress in 12 months.

Aboriginal and Torres Strait Islander peoplesExperiences of racial discrimination

Aboriginal and Torres Strait Islander peoples are particularly affected by racial discrimination, including institutional racism. There are numerous studies into institutional racism and Aboriginal and Torres Strait Islander peoples.[endnoteRef:80] Settings identified as being of special concern include employment, education, shops, public spaces and sport, health and justice.[endnoteRef:81] [80: See Yin Paradies, ‘A systematic review of empirical research and self-reported racism and health’ (2006) 35 International Journal of Epidemiology 888; Yin Paradies and Joan Cunningham, ‘Experiences of racisms among urban Indigenous Australians: Findings from the DRUID study.’ (2009) 32 Ethnic and Racial Studies 548; Yin Paradies and Joan Cunningham, ‘The DRUID study: Exploring mediating pathways between racism and depressive symptoms among Indigenous Australians’ (2012) 47 Social Psychiatry and Psychiatric Epidemiology 165.] [81: Australian Human Rights Commission, Freedom from Discrimination: Report on the 40th anniversary of the Racial Discrimination Act (2015) 65–69. At https://www.humanrights.gov.au/our-work/race-discrimination/publications/freedom-discrimination-report-40th-anniversary-racial (viewed 11 October 2017). See, eg, Yin Paradies, ‘A systematic review of empirical research and self-reported racism and health.’ (2006) 35 International Journal of Epidemiology 888; Yin Paradies and Joan Cunningham, ‘Experiences of racisms among urban Indigenous Australians: Findings from the DRUID study.’ (2009) 32 Ethnic and Racial Studies 548; Yin Paradies and Joan Cunningham, ‘The DRUID study: Exploring mediating pathways between racism and depressive symptoms among Indigenous Australians’ (2012) 47 Social Psychiatry and Psychiatric Epidemiology 165; Australian Government, National Aboriginal and Torres Strait Islander Health Plan 2013–2023 (2013). At http://www.health.gov.au/internet/main/publishing.nsf/Content/natsih-plan (viewed 11 October 2017) and http://www.health.gov.au/internet/publications/publishing.nsf/Content/oatsih-healthplan-toc~priorities~health-enablers (viewed 11 October 2017); Victorian Equal Opportunity & Human Rights Commission, Systemic racism as a factor in the over-representation of Aboriginal people in the Victorian criminal justice system (2005). At https://humanrightscommission.vic.gov.au/our-resources-and-publications/reports/item/1391-systemic-racism-as-a-factor-in-the-over-representation-of-aboriginal-people-in-the-victorian-criminal-justice-system-sep-2005 (viewed 11 October 2017). ]

The Commission noted in its 2016 Social Justice Report that most complaints to the Commission made by Aboriginal and Torres Strait Islander peoples were about racial discrimination. [endnoteRef:82] While the 2016 Australian Census found that Aboriginal and Torres Strait Islander people represented 2.8% of the Australian population, of all complaints made under the RDA in 2016–17, 25% were made by Aboriginal and Torres Strait Islander people.[endnoteRef:83] [82: Australian Human Rights Commission, Social Justice and Native Title Report 2016 (2016), 173–174. At http://www.humanrights.gov.au/sites/default/files/document/publication/AHRC_SJNTR_2016.pdf (viewed 11 September 2017).] [83: Australian Human Rights Commission, 2016-2017 Complaint Statistics (2017). At https://www.humanrights.gov.au/our-work/commission-general/publications/annual-report-2016-2017 (viewed 26 October 2017).]

The Special Rapporteur on the rights of indigenous peoples found the prevalence of racism against Aboriginal and Torres Strait Islander peoples to be ‘deeply disturbing’,[endnoteRef:84] and that ‘racism manifests itself in different ways, ranging from public stereotyped portrayals as violent criminals, welfare profiteers and poor parents, to discrimination in the administration of justice’. [endnoteRef:85] [84: Victoria Tauli-Corpuz, Report of the Special Rapporteur on the rights of indigenous peoples on her visit to Australia, UN Doc A/HRC/36/46/Add.2 (8 August 2017) 6 [30]. At http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/36/46/Add.2 (viewed 10 October 2017).] [85: Victoria Tauli-Corpuz, Report of the Special Rapporteur on the rights of indigenous peoples on her visit to Australia, UN Doc A/HRC/36/46/Add.2 (8 August 2017) 6 [30]. At http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/36/46/Add.2 (viewed 10 October 2017).]

UN Declaration on Indigenous Peoples (CERD article 2; CO 15)

The Commission considers that more robust consideration and implementation of the UN Declaration on Indigenous Peoples (Declaration) would address a number of racial discrimination issues faced by Aboriginal and Torres Strait Islander peoples. The Commission supports the use of the Declaration as a guide for interpreting Australia’s obligations under CERD as they relate to Indigenous peoples.[endnoteRef:86] [86: This is consistent with the interpretative mandate of the Committee outlined in the Vienna Convention on the Law of Treaties and the Committee’s recommendation to the United States of America. See Committee on the Elimination of Racial Discrimination, Concluding Observations on United States of America, 72nd sess, UN Doc CERD/C/USA/CO/6 (8 May 2008) [29].]

The Special Rapporteur on the rights of indigenous peoples has called for the Declaration to be specifically included in the definition of human rights in the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).[endnoteRef:87] [87: Victoria Tauli-Corpuz, Report of the Special Rapporteur on the rights of indigenous peoples on her visit to Australia, UN Doc A/HRC/36/46/Add.2 (8 August 2017) 18 [107]. At http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/36/46/Add.2 (viewed 10 October 2017).]

Further, the Commission considers that the Declaration should be used to frame the Australian Government’s engagement with Indigenous peoples. In particular, the Commission considers that the Australian Government should consult and cooperate with Aboriginal and Torres Strait Islander peoples in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Recommendation 4: That the Australian Government, in partnership with Aboriginal and Torres Strait Islander peoples, develop a National Strategy to give effect to the UN Declaration on the Rights of Indigenous Peoples.

Further, that the Declaration be included in the definition of ‘human rights’ in the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) to ensure that legislation is regularly assessed for conformity with the Declaration.

Constitutional recognition (CERD article 1, 2, 5, 6; CO 15)

The Commission notes the First Nations National Constitutional Convention to discuss constitutional recognition, held on 23–26 May 2017. The Uluru Statement from the Heart (Uluru Statement) was adopted at the Convention. The Uluru Statement calls for the establishment of a First Nations’ Voice enshrined in the Constitution and of a Makarrata Commission to supervise a process of agreement making between governments and First Nations that includes truth telling about Aboriginal and Torres Strait Islander peoples’ history. The Commission welcomes the Uluru Statement and supports the calls for a First Nations’ Voice to Parliament.[endnoteRef:88] [88: First Nations National Constitutional Convention, ‘Uluru Statement From The Heart’ (Group statement, 26 May 2017). At https://www.referendumcouncil.org.au/sites/default/files/2017-05/Uluru_Statement_From_The_Heart_0.PDF (viewed 11 September 2017).]

The Commission is very concerned by the Australian Government’s recent announcement that it rejects the proposal for the establishment of a constitutionally enshrined First Nations’ Voice to Parliament.[endnoteRef:89] [89: Prime Minister of Australia, The Hon Malcolm Turnbull MP, Attorney-General (Cth), Senator the Hon George Brandis QC and Minister for Indigenous Affairs (Cth), Senator the Hon Nigel Scullion, ‘Response to Referendum Council’s report on Constitutional Recognition’, (Media Release, 26 October 2017). At https://www.attorneygeneral.gov.au/Mediareleases/Pages/2017/FourthQuarter/Response-to-Referendum-Councils-report-on-Constitutional-Recognition-27-October-2017.aspx (viewed 27 October 2017). ]

The Australian Government has recently suggested that a parliamentary Joint Select Committee will consider the question of constitutional recognition of Aboriginal and Torres Strait Islander peoples.[endnoteRef:90] This parliamentary Committee will give consideration to the recommendations of the existing bodies of work developed by the Expert Panel on Constitutional Recognition of Indigenous Australians (2012) [endnoteRef:91], the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (2015)[endnoteRef:92] and the Referendum Council (2017)[endnoteRef:93].[endnoteRef:94] [90: Prime Minister of Australia, The Hon Malcolm Turnbull MP, Attorney-General (Cth), Senator the Hon George Brandis QC and Minister for Indigenous Affairs (Cth), Senator the Hon Nigel Scullion, Response to Referendum Council’s report on Constitutional Recognition, Media Release (online) (26 October 2017). At https://www.attorneygeneral.gov.au/Mediareleases/Pages/2017/FourthQuarter/Response-to-Referendum-Councils-report-on-Constitutional-Recognition-27-October-2017.aspx (viewed 27 October 2017). ] [91: Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution — Report of the Expert Panel (2012). At https://www.pmc.gov.au/sites/default/files/publications/Recognising-Aboriginal-and-Torres-Strait-Islander-Peoples-in-the-constitution-report-of-the-expert-panel_0.pdf (viewed 23 October 2017). ] [92: Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Final Report (2015). At https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Constitutional_Recognition_of_Aboriginal_and_Torres_Strait_Islander_Peoples/Constitutional_Recognition/Final_Report (viewed 23 October 2017).] [93: Referendum Council, Final Report of the Referendum Council (30 June 2017). At https://www.referendumcouncil.org.au/sites/default/files/report_attachments/Referendum_Council_Final_Report.pdf (viewed 23 October 2017).] [94: Prime Minister of Australia, The Hon Malcolm Turnbull MP, Attorney-General (Cth), Senator the Hon George Brandis QC and Minister for Indigenous Affairs (Cth), Senator he Hon Nigel Scullion, Response to Referendum Council’s report on Constitutional Recognition, Media Release (online) (26 October 2017). At https://www.attorneygeneral.gov.au/Mediareleases/Pages/2017/FourthQuarter/Response-to-Referendum-Councils-report-on-Constitutional-Recognition-27-October-2017.aspx (viewed 27 October 2017). ]

The Special Rapporteur on the rights of indigenous peoples has encouraged the Australian Government to explore the possibility of a national ‘treaty’ with Aboriginal and Torres Strait Islander peoples.[endnoteRef:95] The Commission notes that, while there are discussions about a Makarrata Commission at the national level, ‘treaty’ negotiations are more likely to take place at the state level. The Commission notes that ‘treaty’ discussions have commenced in Victoria and South Australia.[endnoteRef:96] [95: Victoria Tauli-Corpuz, End of Mission Statement by the United Nations Special Rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz on her visit to Australia (2017). At http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21473&LangID=E (viewed 11 September 2017).] [96: Victorian Government, Treaty (27 October 2017) Aboriginal Victoria. At https://www.vic.gov.au/aboriginalvictoria/treaty.html (viewed 27 October 2017); Government of South Australia, Treaty discussions (27 October 2017) Department of State Development. At https://statedevelopment.sa.gov.au/aboriginal-affairs/aboriginal-affairs-and-reconciliation/initiatives/treaty-discussions (viewed 27 October 2017). ]

The Special Rapporteur on racial discrimination has recommended that the Australian Government finalise a constitutional amendment in order to recognise the inherent rights and culture of Aboriginal and Torres Strait Islander peoples and set up constitutionally protected institutions to protect their ancestral rights and promote their culture and identity.[endnoteRef:97] [97: Mutuma Ruteere, Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance on his mission to Australia, Human Rights Council, 35th sess, UN Doc A/HRC/35/41/Add.2 (9 June 2017) 17 [71].]

That the Australian Government develop with Aboriginal and Torres Strait Islander peoples a model for constitutional recognition and negotiate in good faith with Aboriginal and Torres Strait Islander peoples about national representative mechanisms.

Incarceration of Aboriginal and Torres Strait Islander people (CERD article 5; Declaration articles 7 & 22; CO 19 & 20)Disproportionate rates of incarceration

The Commission is extremely concerned that Aboriginal and Torres Strait Islander people are significantly overrepresented in Australia’s prison population,[endnoteRef:98] especially those with mental health disorders or cognitive disability[endnoteRef:99] and children.[endnoteRef:100] [98: Despite being only 3% of the total Australian population, Aboriginal and Torres Strait Islander adults account for over a quarter (27%) of the total Australian prison population. See Australian Bureau of Statistics (2016) Prisoners in Australia, Aboriginal and Torres Strait Islander Prisoner Characteristics, 4517.0 (8 December 2016). At http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0~2016~Main%20Features~Aboriginal%20and%20Torres%20Strait%20Islander%20prisoner%20characteristics~5 (viewed 11 September 2017). Between 2000 and 2013 the imprisonment rate for Aboriginal Torres Strait Islander adults increased by 57%. Most recent statistics show Aboriginal and Torres Strait Islander adults are imprisoned at 13 times the rate of non-Indigenous adults. Aboriginal children are imprisoned at 24 times the rate of non-Indigenous young people. Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage Key Indicators 2014 (2014), 4. At http://www.pc.gov.au/research/recurring/overcoming-indigenous-disadvantage/key-indicators-2014#report (viewed 11 September 2017). On an average day, Indigenous children aged 10–17 were 17 times as likely to be under community-based supervision as non-Indigenous young people and 25 times as likely to be in juvenile detention: Australian Institute of Health and Welfare, Youth Justice in Australia 2015–16 (March 2017), 2. At https://www.aihw.gov.au/getmedia/b85be60c-9fef-436d-85df-82d8e5c5f566/20705.pdf.aspx?inline=true (viewed 11 September 2017). ] [99: Australian Bureau of Statistics, Profiles of Disability, Australia, 2009, Comparison of Disability Prevalence between Aboriginal and Torres Strait Islander Peoples and Non-Indigenous Peoples (2013). At http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4429.0~2009~Main%20Features~Comparison%20of%20disability%20prevalence%20between%20Aboriginal%20and%20Torres%20Strait%20Islander%20peoples%20and%20non-Indigenous%20peoples~10029 (viewed 11 September 2017). Australian Human Rights Commission, Equal Before the Law: Towards disability justice strategies (2014) 12–13. At https://www.humanrights.gov.au/our-work/disability-rights/publications/equal-law (viewed 11 September 2017). Eileen Baldry, Ruth McCausland, Leanne Dowse and Elizabeth McEntyre, A predictable and preventable path: IAMHDCD Report (UNSW, October 2015). At https://www.mhdcd.unsw.edu.au/a-predictable-and-preventable-path-iamhdcd-report.html (viewed 11 September 2017).] [100: Aboriginal and Torres Strait Islander youth aged between 10–17 years make up more than half (55%) of all children in juvenile detention. See Australian Institute of Health and Welfare, Youth detention population in Australia (2016). At http://www.aihw.gov.au/publication-detail/?id=60129557387&tab=2 (viewed 11 September 2017). In 2017, the Special Rapporteur for the rights of indigenous peoples noted that in some detention facilities, such as in the Northern Territory and in the Cleveland Youth Detention Centre in Queensland, ‘indigenous children constitute an astonishing 90 per cent of the detainees’. Victoria Tauli-Corpuz, United Nations Special Rapporteur on the rights of indigenous peoples, Report of the Special Rapporteur on the rights of indigenous peoples on her visit to Australia, UN Doc A/HRC/36/46/Add.2 (8 August 2017) 12 [66]. At http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/36/46/Add.2 (viewed 10 October 2017).]

Rates of imprisonment of Indigenous women are extremely concerning. Aboriginal and Torres Strait Islander women account for 34% of the adult female prison population.[endnoteRef:101] It is also important to note that 80% of Aboriginal and Torres Strait Islander women in prison are mothers.[endnoteRef:102] [101: Australian Bureau of Statistics, Prisoners in Australia, 2016 (data tables) in Human Rights Law Centre and Change the Record Coalition, Over-represented and overlooked: the crisis of Aboriginal and Torres Strait Islander women’s growing over-imprisonment (May 2017), 10. At https://static1.squarespace.com/static/580025f66b8f5b2dabbe4291/t/59378aa91e5b6cbaaa281d22/1496812234196/OverRepresented_online.pdf (viewed 11 September 2017).] [102: Human Rights Law Centre and Change the Record Coalition, Over-represented and overlooked: the crisis of Aboriginal and Torres Strait Islander women’s growing over-imprisonment (May 2017), 5. At https://static1.squarespace.com/static/580025f66b8f5b2dabbe4291/t/59378aa91e5b6cbaaa281d22/1496812234196/OverRepresented_online.pdf (viewed 11 September 2017).]

Despite currently being only 2% of the total Australian population aged over 18 years, Aboriginal and Torres Strait Islander prisoners represent over a quarter (27%) of all prisoners in Australia.[endnoteRef:103] [103: Australian Bureau of Statistics, Prisoners in Australia (2015) ABS Cat No 4517.0. At http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0~2015~Main%20Features~Prisoner%20characteristics,%20Australia~28 (14 December 2016)]

Laws and policies disproportionately affecting Aboriginal and Torres Strait Islander people have contributed to these incarceration rates. In particular, the Commission notes:

· Imprisonment from fine default — often caused by small overdue fines for criminal offences that, on their own, do not carry an imprisonment penalty — is contributing to high incarceration rates.[endnoteRef:104] [104: Australian Human Rights Commission, Social Justice and Native Title Report 2016 (2016), 42–45. At http://www.humanrights.gov.au/sites/default/files/document/publication/AHRC_SJNTR_2016.pdf (viewed 11 September 2017). ]

· Bail laws and policies have become more restrictive in Australia and have led to a significant increase in the number of Aboriginal and Torres Strait Islander people held on remand.[endnoteRef:105] Research indicates that the length of time individuals spend on remand affects the likelihood of them receiving a custodial rather than non-custodial sentence.[endnoteRef:106] [105: Victoria Tauli-Corpuz, United Nations Special Rapporteur on the rights of indigenous peoples, Report of the Special Rapporteur on the rights of indigenous peoples on her visit to Australia, UN Doc A/HRC/36/46/Add.2 (8 August 2017) 12 [68]. At http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/36/46/Add.2 (viewed 10